Category Archives: Symposia

This post is part of our symposium on Medicare for All. You can find all the posts in the series here.

Nathan Cortez –

The Affordable Care Act of 2010 was the most significant health legislation since Congress created Medicare and Medicaid in 1965, breaking a half-century of health policy incrementalism. But thanks to the Senate, the final bill failed to include a “public option.” And thanks to the Supreme Court, many states rejected Medicaid expansion. Ultimately, the ACA preserved private insurance as the main source of coverage, rendering the act much more incremental than originally envisioned.

Almost a decade later, we are seeing more ambitious reform ideas like “Medicare for All” which until very recently was a political nonstarter. My contribution to this symposium argues not only that some version of Medicare for All is necessary, but also that it may not be as radical as critics claim.

This post is part of our symposium on Medicare for All. You can find all the posts in the series here. You can view Part I of this article here.

Christina S. Ho –

In yesterday’s post, I evaluated Medicare for All and considered some of the implications of a single-payer system. Today’s post will assess the Medicare for America bill, which, by contrast, is a public option. This label may not appear obvious, and is even disputed by some, since the bill sunsets the Affordable Care Act (ACA) exchanges and individual private health insurance. Instead, it enrolls the majority of Americans in a public Medicare plan with benefits close to what Medicare for All would offer.

While the Medicare for America bill is arranged with great promise and enormous care, its real significance lies not in this snapshot description but in the distributional and politico-historical dynamics that its opt-out structure unleashes over time.

To drill down to what’s really at stake, I looked at the leading and most detailed proposals representing these two basic outlooks. To understand “single-payer Medicare for All,” I read the “Medicare for All Act of 2019,” H.R. 1384 introduced by Reps. Pramila Jayapal and Debbie Dingell, which largely tracks the Senate counterpart introduced by Bernie Sanders. I also looked at the most ambitious and developed “public option” proposal, the “Medicare for America Act of 2019,” H.R. 2452, sponsored by Reps. Rosa DeLauro and Jan Schakowsky and drawn in part from the Center for American Progress’ (CAP) Medicare Extra for All plan.

I argue that there may not be as much of a difference between the two plans as the Presidential primary camps will be motivated to portray, and I want to lay out why – with the caveat that at this stage of the debate, no one’s views should be immune from revision, least of all mine.

This post is part of our symposium on Medicare for All. You can find all the posts in the series here.

Allison K. Hoffman –

Medicare for All (MFA) has become the symbol of a larger, brewing movement that is attempting to bring major change to how we pay for and regulate health care in the United States. Even if MFA never becomes law, the conversation around it is building popular support for significant reforms and is creating fissures in the decades-old market-based approach to health care financing and regulation—and in the justification that this approach promotes choice.

Many Americans are well aware that our current health care system is failing them, as nearly 27.4 million people (14 percent of adults) remain uninsured, even after the Patient Protection and Affordable Care Act (ACA), and even those with insurance are struggling to pay for the care they need. The U.S. spends twice as much per capita on health care than the average OECD nation and has worse outcomes on critical measures, like life expectancy and infant mortality.

Over the past three decades, the primary policy solution to the mismatch between high spending and poor outcomes has been to turn to consumerism and market competition for a fix. The underlying theory is that if people have options—options for health plans, hospitals, prescription drugs, providers, and so on—they will choose the higher-value options. In turn, competitors will in theory produce higher-value options to win more customers.

NB: This post is part of the “Skepticism About Information Fiduciaries” symposium. Other contributions can be found here.

Harold Feld–

The United States has the distinction among developed nations of lacking a comprehensive consumer privacy protection law. To fill this gap, Professor Jack Balkin proposes the creation of a new class of common law fiduciaries subject to a heightened duty of care when entrusted with a party’s personal information. In addition to providing an answer to possible First Amendment problems that could arise from limiting the ability of businesses to collect personal information and use the collected information for targeted advertising, Balkin argues that courts may expand traditional fiduciary duties to this new class of “information fiduciaries” in the accordance with traditional common law principles. This would overcome the current failure of Congress and nearly all state legislatures to address the increasingly urgent problem of personal privacy in the digital economy.

Balkin’s information fiduciary proposal, while attractive in addressing some businesses that rely on collection of personal information for targeted advertising, does not do nearly enough to protect personal privacy given the unavoidable size of our information footprint. Further, an examination of existing First Amendment case law shows no clear advantage for identification of a new common law fiduciary relationship over privacy legislation. Finally, the recent passage of the California Consumer Privacy Act (CCPA) has galvanized interest in passing comprehensive privacy legislation both on a federal level and among the other states – whereas no court has yet to identify an “information fiduciary” under the common law.

The value of Balkin’s fiduciary framework, I argue, resides not in providing an enforceable legal relationship but providing a framework for privacy legislation. The existing frameworks – the Privacy Principles adopted by the Organization for Economic Co-operation and Development (OECD) in 1980 which rely heavily on notice and consent and the property framework introduced by Louis Brandies in “The Right To Privacy” (both of which I discuss in this privacy white paper) – have significant limitations. Balkin’s proposed fiduciary framework provides a model for legislation that recognizes that the nature of the relationship between information collectors and aggregators requires imposing additional duties and restrictions to adequately protect consumers, while still enabling commerce and facilitating competition.

NB: This post is part of the “Skepticism About Information Fiduciaries” symposium. Other contributions can be found here.

Tamara Piety –

I was delighted to read Lina M. Khan and David E. Pozen’s recent article, A Skeptical View of Information Fiduciariesdescribing the reasons to be skeptical of the “information fiduciary” concept as a promising one for solving the problems posed by giant companies like Facebook. As Khan and Pozen point out, its proponents are a bit fuzzy about the details of how to reconcile these for-profit companies’ existing duties to shareholders, with some kind of fiduciary duty to users. The users’ attention is what these companies are selling. Khan and Pozen are skeptical that such a fundamental conflict can be resolved and I agree.

I only have a couple of additional points:

(1) Before looking to import the concept of a “fiduciary” to this new application, we might ask how well that concept has worked, as a means to check anti-social behavior, in the areas in which it has traditionally applied. If that area is corporate law where officers and directors are said to have fiduciary duties to the corporation and its shareholders, the answer is “Not very well.” It does not seem to have deterred much corporate misconduct.

(2) Although Khan and Pozen rightly observe that Facebook does more than sell passive viewers to its advertisers, it uses the data it collects from those users to construct or identify vulnerabilities that go far beyond the information asymmetry as it conventionally is understood in the fiduciary concept, in their discussion of the problems that the information fiduciary concept is meant to solve, they note (18-19) that many of these problems are already “proscribed by existing consumer protection laws,” they may not be confronting the degree to which Balkin, et al. may be attempting to offer alternative rationales for that existing consumer protection law given that it is no longer resting on as firm a foundation as in the past. However, the Supreme Court has been increasingly hostile to the government’s attempt to regulate any speech at all and increasingly willing to use the First Amendment as a weapon of deregulation. As Khan and Pozen note, to the extent that other arguments for special status or duties as a way to end run the Court’s more aggressive, the Supreme Court has not signaled much receptiveness to this approach.

NB: This post is part of the “Skepticism About Information Fiduciaries” symposium. Other contributions can be found here.

James Grimmelmann –

Online platforms do different things for (and to) users. Some of these things are a good fit for fiduciary principles, some are not.

Perhaps most obviously, platforms collect data about users. Some of that data is inherently sensitive, like health records; some of it is sensitive in the aggregate, like months of Facebook likes. Either way, the users could be harmed if their data got into the wrong hands or were used against them.

Fiduciary principles are a good fit for platform data collection in two overlapping ways. First, the core fiduciary duty of confidentiality has long applied to knowledge professionals like doctors and lawyers when they receive information about their patients and clients. Like digital platforms, they need information to do their jobs; fiduciary law makes sure they use it only to do their jobs. Second, fiduciary duties of care and loyalty have long applied to parties who are entrusted with a thing of value. That’s what happens in a literal trust, the paradigmatic source of fiduciary duties. It is not difficult to extend those duties to parties who hold information, rather than money or other tangible property. Current U.S. information privacy law is patchy and hesitant, but its best version of itself would cash out fiduciary principles in specifying when and how platforms can use and share user data.

NB: This post is part of the “Skepticism About Information Fiduciaries” symposium. Other contributions can be found here.

Julie E. Cohen –

The Centenal Cycle, the Hugo-nominated trilogy by novelist Malka Older, describes a not-too-distant future in which the existing liberal world order has been replaced by a regime of mass-mediated micro-democracy. With some exceptions—a handful of so-called null states that opted out and a more intriguing smattering of territories that opted for self-rule without the mass mediation—nation-states and their subordinate governance units have been dissolved. The vast majority of people live in centenals—contiguous territories of no more than 100,000 citizens—administered by entities of various persuasions that compete for their affiliation. Governments range from powerful, globally distributed operations such as Liberty, Heritage, and PhilipMorris to the nerdy Policy1st to regional players like AfricaUnity and DarFur to small, quirky outfits like the generally libertarian and fun-loving Free2B.

The regime of micro-democracy relies on networked information and communication services provided by an entity called, simply, Information. When we encounter it, it has assumed the status of an independent, nongovernmental entity with an unambiguously public-regarding mandate to function as a neutral guarantor of information quality.

Of course, that is easier said than done. Governments, splinter groups, and null states have incentives to sow mis- and disinformation for their own purposes. Guaranteeing information quality requires both comprehensive surveillance and an impressive array of counter-espionage capabilities. There are intricate cat-and-mouse games between the watchers and those attempting to evade them. Technologically sophisticated separatists spoof surveillance cameras and disinformation-detection algorithms and devise means of lurking undetected within secure communications channels and data streams. Resistance and subversion also establish bases of operation within Information itself. The dream of a sustainable micro-democratic order mediated by a neutral corps of public-spirited technocrats ultimately proves untenable, and yet the dream is so compelling that as the narrative closes on the aftermath of a systemic breakdown, Older’s band of protagonists is hatching plans to rebuild infrastructures, redesign institutions, and try again.

What does any of this have to do with Khan and Pozen on Balkin? The monolithic, public-spirited Information, the multiple, capitalist information fiduciaries of the Balkin proposal (see here and here), and the regime of structural regulation of information intermediaries that Khan and Pozen appear to imagine would seem to have very little in common. But they are imagined responses to the same problem: that of governing data-driven algorithmic processes that operate in real time, immanently, automatically, and at scale. More specifically, they are visions that engage with the problems of speed, immanence, automaticity, and scale in radically different ways.

In recent years, the concept of “information fiduciaries” has surged to the forefront of debates on platform regulation. Developed by Professor Jack Balkin, the information–fiduciaryproposal seeks to mitigate the asymmetry of power between a handful of dominant digital firms and the millions of people who depend on them. Just as doctors, lawyers, and accountants are assigned special legal duties of care, confidentiality, and loyalty toward their patients and clients, Balkin argues that Facebook, Google, and Twitter should owe analogous duties toward their end users. This argument has gained broad support. Last December, over a dozen Democratic Senators introducedlegislation that would designate online service providers as fiduciaries for their users, effectively implementing Balkin’s proposal.

In a forthcoming essay, we question the wisdom of applying a fiduciary framework to dominant digital platforms. Focusing on the case of Facebook—Balkin’s central example of a purported information fiduciary—we identify a number of lurking tensions in the proposal. For instance:

NB: This post is part of the “Piercing the Monetary Veil” symposium. Other contributions can be found here.

Robert Hockett–

Imagine that I incur an obligation to you – an ‘affirmative’ obligation, let’s say. Perhaps it’s through violating some ‘negative’ obligation to you, wronging you in a manner that triggers a right to redress. Perhaps it’s through promising you something. Perhaps it’s through membership in some group, the members of which are expected to ‘pay dues’ of some sort.

In virtue of this obligation, I, the ower, am now ‘liable’ on the new obligation. You, the owner, now ‘hold’ a new asset – the asset that’s my liability. Here is the start of accounting. Of shared ledgers. All accounting at bottom is obligation-accounting, justice-accounting – tracking what’s due and by whom and to whom.

Liabilities that come into existence ex nihilo – by my promising you something ‘gratuitously,’ for example – give salient rise to a two-sided danger, something a lot like the Janus-faced monetary risk of ‘inflation’ and ‘deflation.’ For one can in principle promise more than she can deliver, thereby devaluing her promises in time. Or, fearing this prospect, she can ‘not make any promises,’ thereby impoverishing her life by depriving it of the rich fabric of association and shared action that lends and brings value to life in communion with others.

Promissory inflation and deflation, through devaluation or contraction, deprive life of much of its obligatory content. And life without obligation would be life without liabilities, life without assets. It would in that sense be life without worth, without wealth, without value. It would be life without any vindicatable expectation – life without ‘rights,’ without ‘wrongs,’ without ‘right or wrong.’

How dismal that would be.

Life with real value accordingly requires, not gold (more on which below), but observance of some ‘golden mean’ – the mean between wronging and not acting, the mean between over- and under-committing. And this is as true of us in our collective capacities as it is of us in our individual capacities.